April

April 1-8

"The practical impact [of the Supreme Court's ruling] has not been very significant," said Columbia law professor Matthew Waxman, who worked in the Bush administration. Many saw the decision "as a step toward judicial dismantling of Guantanamo, but it wasn't. And to the surprise of many Guantanamo critics, all three branches of the U.S. government now stand behind the idea that the president has legal authority to hold many detainees there without trial."

Since we are now in the middle of redistricting season, I recently drafted a new Massachusetts map for the next decade (during which the state will have nine districts). My effort was part of the DrawCongress.org project led by Columbia Law School professor Nate Persily. The project aims to create a repository of nonpartisan Congressional district maps for every state in the country. These maps will be available as a reference for the line-drawers themselves, for litigants, for the media, and for the general public.

The number of filings in March was still high compared to the prior month, though. Consumer bankruptcies rose to 144,657 in March, a nearly 41% increase from February. But personal filing tallies aren’t seasonally adjusted and can vary widely month-to-month. The uptick in March is often attributed to households using their tax refund to pay for attorney fees and filing costs, said Ronald Mann, a law professor at Columbia University.

The NYSE reportedly has indicated that it will review the unsolicited proposal but, according to John Coffee, a renowned corporate governance expert and Columbia Law School professor, the offer doesn’t oblige the NYSE board to auction off the company. ‘Because the Deutsche Börse/NYSE deal is a stock-for-stock exchange deal, it qualifies under Delaware law as a merger of equals,’ Coffee explains. ‘That means the NYSE board isn’t obliged to pursue the highest offer and can ignore the NASDAQ offer,’ he adds.

Others say the agency has more going for it this time around. In previous cases, there was a perception that the SEC had overstepped its legal authority. This time, the agency has the blessing of the U.S. Congress via the Dodd-Frank financial reform law. 'Here you do have a new authorization. This is not something that is flying in the face of prior interpretations of the authority Congress granted you,' said John Coffee, a professor at Columbia Law School.

Jagdish Bhagwati, one of India’s most celebrated economists and professor at Columbia University in New York, says India’s tycoons need to forsake showy, conspicuous consumption in a country that is home to the world’s largest concentration of poor people. He calls a breed of modern-day entrepreneurs “people who build potholes and call them roads.” The economist also calls for greater public vision. Some of India’s richest business leaders shun the philanthropy of Bill Gates and Warren Buffett. Yet Mr. Bhagwati says they need to exercise far more “personal social responsibility” to spread the wealth.

Munger’s account of the BYD investments doesn’t raise “any taint or question mark” for Berkshire, said John Coffee, a securities law professor at Columbia University. “There’s always going to be some possibility that a director will have some interest in a company that your firm is looking at for a transaction and you disclose that and you recuse yourself,” Coffee said.

“It is very unusual to have a dual CEO,” says Robert Jackson Jr., associate professor of law at Columbia Law School and a corporate governance expert. “But it happens from time in situations just like this.” Jackson says that it’s also rare in a large for-profit corporation like Clear Channel for the GC to step into the CEO’s shoes. If the board has a strong general counsel, it very likely wants to hang onto them in that capacity, says Jackson.

NEW YORK TIMES—(Economix Blog)—April 8

The Logic of Cutting Corporate Taxes
Prof. Michael Graetz of Columbia Law School told the Senate Finance Committee that the shortfall in corporate tax revenues resulting from a cut in the corporate tax rate could be offset by the imposition of a corporate withholding tax on dividend and interest payments to shareholders and bondholders. Such a change would both reduce the incentive for corporations to move investments abroad and increase the progressivity of tax outcomes by shifting more of the burden of corporate taxation from labor to capital owners. Professor Graetz (has also) proposed introducing a value-added tax to reduce the deficit and to finance a reduction in the corporate tax rate.

April 8-15

STRAITS TIMES—April 9

China’s American Pie (subscription required)

THE big question is whether the Chinese firms will turn elsewhere if they think the American business environment is too hostile. Still, no one expects the Chinese companies to ditch America completely. “The US market is too large and sophisticated for them to walk away from and say, well, it's too difficult and we are just going to take our money elsewhere,' said Professor Curtis Milhaupt of Columbia Law School. “China certainly reacts when some of the deals blow up. What I'm waiting to hear is China's message during quiet times when there is no controversy. What are they trying to convey to the American public with respect to Chinese investments? So far, silence is what has come through.''

Some argue that the FTC should just issue a rule to curb the recent proliferation of settlements. It's not a new concept: C. Scott Hemphill, an expert on reverse payments at Columbia Law School, first proposed FTC rules governing drug industry settlements in a 2009 Columbia Law Review article. Now, though, at least one FTC commissioner, Republican appointee Thomas Rosch, is publicly backing the idea, and Rosch says that other FTC officials are taking it seriously enough that they've created a task force to draft a proposed rule.

Rich countries like the United States say the developing countries, like China, need to open their economies to more international competition, by reducing tariffs or import quotas, for example. But Jagdish Bhagwati, a Columbia University professor who has advised the World Trade Organization, argues that trade negotiators at some point need to give up trying to determine who has made the most concessions and just make a deal. "There are so many issues at stake — intellectual property protection, anti-dumping rules, concessions on tariffs, concessions on nontariff barriers — that to say, 'We are doing things and they don't balance what you are doing,' that's becoming rather stupid in my opinion," Bhagwati says. "Those issues can't be quantified."

John Coffee Jr., a professor at New York’s Columbia University Law School, said the lawsuit would likely be dismissed by a judge as the bloggers’ decision to contribute to the website was a rational one, and that the Internet site was within its rights to profit from the free content.

"Part of the problem for a shareholder is that while you would like a larger bid, do you turn down the bird in the hand for a bird with very big conditions associated with them?" said John Coffee, a professor at Columbia Law School who is an expert in securities law. "The antitrust problem is immense and unprecedented. You never saw General Motors and Ford merge."

Scott Horton: Although bombs may have already fallen on Libya, it's not too late for the Obama administration and Congress to discharge their constitutional obligations, however belatedly. The question will only become more acute the longer the clock ticks. In mid-May, the 60-days latitude granted by the War Powers Resolution will expire. The president then must either secure Congress's blessing or disengage from the operations within the following month.

Richard Stone, the chairman of the NCSJ, was elected unanimously as the next chairman of the Conference of Presidents of Major American Jewish Organizations. Stone, a New York attorney, was elected Monday at a meeting of the Presidents Conference in New York. He will assume his new position on June 1, succeeding Alan Solow. NCSJ, formerly known as the National Conference on Soviet Jewry, advocates for the Jewish communities in the republics of the former Soviet Union.

John Coffee, a professor at Columbia Law School, said this adds to the evidence against Sokol, “but does not make it a slam dunk.” ”He learns all this because of his position at Berkshire, thus satisfying the element that he ‘misappropriated’ confidential business information from a party to whom he owes a legal duty,” Coffee wrote in an email to MarketWatch. “But it is still open to question whether this information was material as of his purchases in early January.”

First of all, the road to good governance was paved with good intentions. According to Robert J. Jackson, Jr., Associate Professor at Columbia Law School, and deputy special master for TARP Executive Compensation, Dodd-Frank was designed to put more power in the hands of Board Directors. As such, Dodd-Frank stipulated that the Committee should retain the advisors and judge their independence. These are good intentions.

Law professor Michael Graetz doesn't exactly scream in his just-published book, "The End of Energy." But his frustration is evident as he brilliantly narrates a 40-year history of national energy policy incompetence shaped by both market and governmental failure (regardless of which political party has been in power).

“It has become the authoritative report on human rights on an annual basis to which people can refer,” said Peter Rosenblum, a professor of human rights law at Columbia Law School. “There is no other systematic update of human rights practices country by country. It really is true that the quality, overall, of these reports has improved greatly.”

"It could cut both ways, and pose an interesting tactical decision for Rajaratnam's lawyers," said Daniel Richman, a Columbia Law School professor and former federal prosecutor, referring to the timing of the Skowron announcement. "Defense lawyers could complain about the risk of jury taint," he said. "They could ask for the jury to be questioned by the judge, but that could have downside risk because jurors who weren't aware of the case might now be made aware."

April 15-22

As the trial began last week in Federal District Court in Manhattan, the lawyers for three West African defendants made a series of highly unusual admissions: One after another, they told the jury that their clients were involved in the global drug trade. But the three lawyers were steadfast in their denials that their clients had ever agreed to send drugs into the United States. “They have to work with the evidence they’ve got,” said Daniel C. Richman, a former prosecutor who teaches criminal law at Columbia. “It also suggests an assumption by defense lawyers that drug trafficking outside the United States isn’t something American jurors will get excited about.”

Theodore Shaw, a professor at Columbia Law School and former director-counsel and president of the NAACP Legal Defense and Educational Fund, said the 17-year-old Owes will need the backing of the entire congregation and strong guidance from the church in order to get back on the right path. "We want to make sure she has as much support as we can provide," Shaw said. He added that while there's "some risk" in providing Owes' bail, the church feels comfortable that she's heading back in the right direction. "This was someone who's been in the church since nursery school," he said. "She is known by the members."

BOSTON GLOBE—April 16

Shapiro’s Links to Madoff Detailed
“A reasonable person looking at this lending arrangement would infer that Madoff was facing significant financial stress,’’ said John C. Coffee, a professor at Columbia University Law School. “If you are loaning on these rather unusual terms, it suggests that Madoff was very financially strained and willing to pay 30 percent interest.’’

“Lots of people can litigate in court, but few people know how to negotiate with regulators because you’ve been there and done that yourself,” said John Coffee, a law professor at Columbia University in New York. “The major banks are still going to have complicated negotiations with the SEC and other financial regulators, and it’s good to have someone who knows how the other side thinks and how to persuade the other side.”

Columbia Law Professor Trevor Morrison has this lengthy review essay in the Harvard Law Review of Bruce Ackerman’s new book, The Decline and Fall of the American Republic. The essay, entitled “Constitutional Alarmism,” is rather devastating in my opinion. It is focused largely on Ackerman’s suggestion that, as Morrison summarizes, the Office of Legal Counsel should be recast as a “‘Supreme Executive Tribunal’ of nine presidentially nominated, Senate-confirmed “judges for the executive branch” and “that th[is] Tribunal [should] replace OLC as the principal source of centralized legal analysis within the executive branch. In fact, [Ackerman] would grant the Tribunal an even broader mandate.

Columbia University's Michael Gerrard says the federal government owns the TVA. So the Justice Department represents the utility at the Supreme Court. Gerrard says it's not that the feds want to let the TVA and other greenhouse gas emitters off the hook. “But they think it's really up to the executive agencies and to Congress to set these emissions standards and that as long as that's happening, the courts shouldn't be setting these standards.”

“Clemens marched in there with guns blazing and head held high,” said Daniel C. Richman, a former prosecutor who teaches criminal law at Columbia University. But Richman said jurors might also question the motives of Congressional leaders, something he called a wild card in predicting the outcome of the case. “Although formally, jurors won’t be thinking hard about whether Congress should have been looking into the steroids issue, I think it’s inevitable in perjury and obstruction cases that a jury will think about who is asking the questions and about what,” he said.

The federal docket in Galea’s case shows no activity since his indictment on Oct. 14, an indication either that his lawyer is trying to persuade federal prosecutors to drop the charges or — more likely — that he is in plea negotiations, said Daniel C. Richman, a former federal prosecutor who teaches criminal law at Columbia University. “The more common scenario is plea discussion,” Richman said.

Could full-face veils be banned in the United States? Perhaps, but the law wouldn't be upheld in the courts, according to Lawrence Rosen, an anthropology professor at Princeton University and an adjunct professor of law at Columbia University Law School. "I think the Supreme Court and the other courts have been very careful to protect legitimate rights -- that can include the way a person is dressed," said Rosen.

Legal scholars said the case would be closely watched and could have ripple effects. “Charging this as a bias crime may send a message to prosecutors who are dealing with similar cases in other states about the particularly damaging consequences of this kind of crime,” said Suzanne B. Goldberg, director of the Columbia Law School Center for Gender and Sexuality Law.

Some Columbia Law School students are getting a rare chance to put wife beaters and abusive ex-boyfriends behind bars before they even get their degrees. The third-year students have been working as full-fledged prosecutors in Queens District Attorney Richard Brown's Domestic Violence Bureau. Instead of working as glorified gofers, the 26 students have taken cases to trial on their own in a first-of-its-kind program that got the blessing of the state appeals court before kicking off last year.

Michael Gerrard, director of the Center for Climate Change Law, said, “There is enormous potential for US companies to not only help India reduce greenhouse gases, but to take an active role in investments that can provide an excellent rate of return.”